The Country Club of Coral Gables,
a Florida Corporation Not For Profit,
Appellant,
v.
Joan L. McHALE and William J. McHale, her Husband, Appellees

No. 65-714

District Court of Appeal oF Florida, Third District

June 28, 1966

Dean & Adams and Charles K. George, Miami, for appellant.

Sams, Anderson, Alper & Spencer, Miami, for appellees.

Before Hendry, C.J., and Carroll and Barkdull, JJ.

HENDRY, Chief Judge.

This is an appeal from a judgment entered in favor of
plaintiffs pursuant to a jury verdict in a suit for
personal injuries. The jury awarded Mrs. McHale the sum
of $3,000 and awarded her husband $500.

The complaint charged that the defendant did negligently and carelessly
create, permit to come into being and maintain a dangerous condition
in the area used by the public on its premises, to-wit: a slippery
floor, or in the alternative, defendant knew or should have known
of such unsafe condition and did negligently, carelessly and
recklessly fail to warn plaintiff as to said unsafe condition;
that as a result thereof plaintiff, an invitee was injured when
she slipped and fell when she was leaving the premises.

Defendant denied that plaintiff was an invitee and alleged that
she was on the premises as a licensee. The answer also denied
the allegations of negligence on the part of the defendant and
charged plaintiff with contributory negligence.

The evidence shows that Mrs. McHale was a society reporter employed
by one of Miami's daily newspapers; by reason thereof, the country
club had given her and her family a complimentary membership
in the club which entitled them to free use of all its facilities.
There was no requirement that Mrs. McHale attend any social events
or write any articles about the club to its guests. However,
it was expected that the complimentary membership would result
in some favorable publicity for the club and its members.

On January 12, 1963 at about 1:00 o'clock P.M., Mrs. McHale went
to the swimming pool with her two children for the purpose of
enjoying the pool facilities. She went in the pool upon arrival,
but stayed in only a very short time. After getting out of the
water, she sat on the edge of the pool for about one hour and
thereafter left the pool wearing a bathing suit and rubber
thongs. She walked down the steps from the pool to the patio
and proceeded towards the dance floor and patio, intending to
walk along the dance floor to the exit; the exit through the
locker room was closed and a sign was posted:
"use side entrance." The other routes of egress would have
required her to climb some stairs and cross the stage of
the bandshell or to have gone behind the bandshell between storage
houses. Plaintiff maintained that the route she was taking
was as directed by the sign.

As she was walking on or near the open air dance floor, she felt
her right foot slip on "something slick" and she fell. As she
sat on the floor in a dazed condition she realized that the bottom
of her bathing suit was damp but she did not know what caused
it to become damp. She said the suit was dry before the accident.
Plaintiff was not certain as to whether she fell on the cement
patio or on the terrazzo dance floor, but there was evidence
that she fell on the dance floor about three or four feet from
the edge.

Neither the plaintiff nor any of the witnesses who were present
at the scene of the accident testified that they observed any
dampness or foreign substance on the floor where plaintiff fell.
However, plaintiff caused a test to be made in February, 1963
by an engineer who testified that he found silt and fungus in
the area where plaintiff fell and that it was present when other
portions of the floor were dry. He found the area to be a low
spot that caused it to remain damp and slicker than the rest
of the floor.

The club maintains a chain around the dance floor. The club manager
testified that he has a very firm rule requiring the chain to
be up at all times, except when the dance floor is used for dances
and other functions, because when the dance floor is wet it is
treacherous. Plaintiff testified the chain was not up when she
fell.

Defendant has raised various points on this appeal, two of which
we shall consider herein. The first point is that the court erred
in charging the jury as a matter of law that plaintiff was a
business invitee. Defendant argues that Mrs. McHale was on defendant's
premises for her own convenience, pleasure or benefit and was
thus, a licensee.

Because Mrs. McHale had a complimentary membership and no pecuniary
profit inured directly to the club does not, of itself, indicate
that she was there for her own benefit. Mrs. McHale was invited
to accept the complimentary membership by the board of directors
of the club in order that its social image in the community be
well portrayed. The fact that this relationship was fruitful
to the club is shown by the renewal of her membership every year.

From this we conclude that Mrs. McHale's presence in the club
was for the mutual benefit of the parties and that the trial
court was correct in ruling as a matter of law that she was a
business
invitee.1

As an invitee, the club owed to Mrs. McHale the duty to keep the
premises in a reasonably safe condition and will be liable in
this respect if the danger was known or by the exercise of reasonable
care should have been known in time to have remedied the situation
or to have given warning of
danger.2

The second point considered is defendant's contention that Mrs.
McHale had a duty to see what is plainly to be seen by the ordinary
use of the senses, and since the danger was patent and clearly
visible, it should be considered that she was warned as a matter of
law.3

Mrs. McHale would not be guilty of contributory negligence because
she failed to observe the dangerous condition of the dance floor
unless she had a reason to apprehend the
danger.4
Such a question is generally for the jury to
resolve.5

The evidence presented does not require finding in favor of the
defendant on the issue of contributory negligence, thus, the
lower court was correct in submitting the question to the jury.

Having examined and considered all the points presented and finding
no reversible error, the judgment appealed is affirmed.